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The Habeas Citebook: Prosecutorial Misconduct - Header
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From the Editor

For virtually every person who’s seen the horrifying video of George Floyd’s final moments, his killing feels qualitatively different than the countless other police killings of unarmed individuals that plague America. True, there have been many others that were captured on video, and many involved a White police officer taking the life of a Black person. But for the most part, those killings occurred in an instant, or if we suspend our disbelief and push the outer bounds of credulity to the breaking point, arguably, the victims were actively resisting or otherwise posed a potential threat at the time of the killing. That simply can’t be said about the death of George Floyd.

He died as a result of being handcuffed and pinned to the ground on his stomach with two police officers applying pressure to his torso and legs and a third officer with his knee planted on the back of his neck for an inexplicable eight minutes and 46 seconds. The officer can be seen on video periodically digging his knee into Floyd’s neck with even greater force as he struggles for air and literally pleads for his life in vain. Heartbreakingly, there comes a point when Floyd appears to realize that he’s going to die on the street at the hands of these police officers as he cries out for his “Mama” and presciently declares, “I’m going to die.” Video shows that the officer kept his knee dug in to the back of Floyd’s neck for two minutes and 53 seconds even after he had become unresponsive. Bystanders on scene, as well as those who have viewed the video, understood that the officers were crushing the life out of Floyd. They can be heard on video begging the officers to get off of him so that he can breathe; there was particular urgency in the pleas for the officer to remove his knee from Floyd’s neck, all to no avail.       

None of the customary defenses and rationalizations trotted out by the police and their apologists can reasonably be invoked with even a semblance of credibility and good faith in the killing of George Floyd. He wasn’t killed in a split-second decision, so it can’t be claimed that the speed of events clouded the officers’ perception of the situation. Instead, his killing occurred over the course of nearly nine excruciating minutes, during which time the officer grinding his knee into Floyd’s neck had ample time to contemplate exactly what he was doing. Nor can it be said that Floyd was actively resisting or posed a threat when the three officers had him pinned to the ground. By that time, they had gained control of him. Even the police’s catchall, get-out-of-jail-free card of “I was in fear for my life” isn’t available to the officers in this case. Any attempt to assert that troublingly dependable defense wouldn’t even pass the so-called giggle test.

The reaction to the video of George Floyd’s killing has been visceral, which has sparked sustained protests across the country for over three weeks, with no sign of abating any time soon. The officers’ actions were just so incomprehensibly gratuitous, so casually cruel. As a result, these protests appear more widespread and seemingly have more momentum than those that have followed the many widely publicized police killings of unarmed Black people over the past few years.

Unfortunately, widespread, impassioned protests decrying police brutality and systemic racism in the criminal justice system alone are unlikely to bring about meaningful change. There must also be a concerted effort to eliminate qualified immunity and reform the current law governing municipal liability. Both barriers to genuine police accountability were erected by the U.S. Supreme Court but can be remedied by Congress. In addition, the near-automatic indemnification of police officers by their government employers must be eliminated for civil liability reforms to be truly effective.

Qualified immunity was first invoked by the Supreme Court in Pierson v. Ray, 386 U.S. 547 (1967). It shields police officers, among others, from civil liability for violating a person’s rights unless they violate a “clearly established” statutory or constitutional right. In its current form, the standard for denying an officer qualified immunity is exceedingly high. Thus, if there’s no realistic avenue for legal recourse when a person’s rights have been violated, then those rights are effectively rendered meaningless, as are the civil remedies designed to hold police accountable.

Similarly, municipalities are shielded from liability for the misconduct of their police officers as a result of the Supreme Court’s decision in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Unlike employers who are responsible for the actions of their employees based on the principle of respondeat superior, Monell established that municipalities are not likewise responsible for the wrongful actions of their employees. The narrow exception to this immunity is when the victim can prove that the employee acted in accordance with official government policy or custom. In the real world, municipalities are not enacting official policy sanctioning police misconduct, so it is practically impossible to successfully sue them. Again, this frequently leaves victims without any recourse when their rights have been violated, so bad actors are not held accountable and thus have no incentive to alter their behavior.  

Congress can provide a solution to this lack of genuine accountability by enacting legislation to eliminate or modify both qualified immunity and the current law governing municipal liability. Since the Supreme Court was interpreting statutes and examining common law, not the Constitution, when it fashioned its rules on these issues, Congress has the power to fix them.

The prospect of potentially ruinous monetary judgments against police officers in their personal capacity together with their employers will undoubtedly serve to rein in police misconduct more effectively than any of the current mechanisms for oversight and accountability, which are failing miserably. However, for such potential judgments to have any material effect on curbing police officers’ abusive behavior, the current practice of their public employers’ near-universal indemnification of officers must also be eliminated. Currently, even in the rare cases in which a monetary judgment is obtained against an officer, the officer’s employer indemnifies the wrongdoer, i.e., pays the judgment on the officer’s behalf. As a result, taxpayers are the ones actually paying for police misconduct. This lack of incentive to curtail abusive behavior can be fixed by requiring police officers to carry personal liability insurance as other professions do. Insurance companies are extremely good at managing risks, so those officers who pose a high risk for abuse will be forced to pay higher premiums or be unable to get insured at all and thereby be barred from working as a police officer.      

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